How the Fair Debt Collection Practices Act Works as a Shield to Protect and Sword to Attack Debt Collectors

I have sometimes spoken of the Fair Debt Collection Practices Act (FDCPA) as both a “shield” and a “sword” - a fairly common legal metaphor for a law which has both offensive and defensive capabilities. Let's consider a few of those capabilities in this article.

FDCPA as a shield

The FDCPA prevents debt collectors from taking advantage of you in various ways. When you are first contacted by a debt collector, for example, it is supposed to notify you of two important rights: you have the right to dispute the debt and seek “verification” of it; and you must know that anything you tell the debt collector will be used in further attempts to collect the debt from you. (We call this right the “mini-Miranda,” after the right you have, in a criminal context, not to incriminate yourself.) If you dispute and seek verification, the debt collector is required not to take further collection activities against you until after verifying the debt. If it does take further actions, it is in violation of the FDCPA (giving you the right to sue it). If the debt collector sues you before providing verification, you may seek to dismiss the case pursuant to the FDCPA. It is this ability to stop the lawsuit that I consider the true “shield” of the FDCPA.

The FDCPA also requires a debt collector to bring suit against you either where the contract it is seeking to enforce against you was signed or where you reside. This means it cannot sue you in a place which is inconvenient or expensive for you to reach. If it sues you in the wrong jurisdiction, it is again both a violation that gives you the right to sue it and a legal tool you can use to seek dismissal of the case.

FDCPA as a Sword

There are many other rights provided by the FDCPA which prevent or require the debt collector to stop doing certain things. That's the essence of any law – that it requires or prevents certain actions. Speaking very broadly, the FDCPA prohibits any sort of unfair methods or deceptive communications on the part of the debt collector. We will discuss these prohibited actions in greater detail in other articles, but in this article we will discuss the ways you can use debt collector violations to your benefit.

FDCPA as Counterclaim

If a debt collector violates the FDCPA and then sues you, as is quite often the case, or if it violates the FDCPA in the process of suing you, you can file a counterclaim against it. Basically this means that when you answer the petition (also sometimes called a “complaint”) against you, you will add a claim against the debt collector to your denials that you owe them money. And you will ask for money to penalize them for breaking the law and an order of the court that they should stop. I have often advocated the use of a counterclaim as an important way to keep the debt collector from simply dropping the case just before trial without eliminating the debt.

FDCPA as Lawsuit

If a debt collector violates the FDCPA and then does not sue you, or if you defend the suit without bringing a counterclaim and later want to sue the debt collector, you can do so with the FDCPA. You can bring an original lawsuit against the debt collector in either state or federal court, and again, you will be asking for the “statutory penalty” of “up to $1,000,” an order of the court to make them stop doing whatever they were doing, and – if justified - “damages,” which could include money for emotional distress. We will discuss possible “remedies” - what you can get – of the FDCPA in future articles.